The Importance of Policing
By
By
Stephen Rushin[1]†
This Article argues that, if effectively regulated, policing represents a fundamentally important social institution that advances the community interest in public safety, justice, equality, and the rule of law.
In recent years, a significant and growing body of legal scholarship has called for the shrinking of police responsibilities, the defunding of police budgets, or the complete abolition of local police departments. A countervailing body of scholarly literature has questioned the wisdom of some of these proposals, arguing that they could unintentionally make policing worse or have unintended public safety effects.
This Article enters this debate by affirmatively defending the importance of the institution of policing. It argues that effectively regulated policing is critical to the investigation of harmful criminal behavior, the responses to public safety emergencies, the deterrence of future harmful conduct, the physical protection of historically marginalized communities, and the rule of law.
However, policing can only serve these important functions if it is effectively regulated and accountable to the community it serves. Too often, the failure of policymakers to properly regulate police behavior has led to unaccountable policing agencies that regularly violate the constitutional rights of their constituents, particularly the rights of historically marginalized populations. However, that represents an ongoing regulatory challenge rather than an indictment of the fundamental importance of the institution of policing.
Understanding the importance of policing as a social institution has more than mere academic significance. As some scholars push for a fundamental reimagination of public safety, it is vital for these proposals to understand the value conferred by the institution of policing. Only by understanding the importance of policing can both abolitionists and reformers develop solutions that balance public safety and the protection of constitutional rights.
In the wake of the murder of George Floyd,[2] numerous community activists and civil rights leaders pushed policymakers to defund,[3] reimagine,[4] or abolish police departments.[5] They argued that the institution of policing is fundamentally broken and cannot be effectively regulated;[6] decades of reforms have failed.[7] Ultimately, activists and policymakers alike posit the only way to minimize the harm caused by policing, particularly the harm caused to communities of color and other historically marginalized groups, is to shrink the scope of police responsibilities or eliminate policing altogether.[8]
Following some of the largest protests in American history,[9] political leaders in numerous large American cities responded. In June of 2020, a seemingly veto-proof majority of the Minneapolis City Council pledged to dismantle and abolish the city’s police department.[10] In August of 2020, the Austin City Council cut their police department’s budget by around one-third.[11] And that same summer, Oakland city leaders pledged to cut the police budget roughly in half.[12] Indeed, around the end of the summer in 2020, media outlets touted the “historic victories” won by the police defunding and abolition movement across “a dozen municipal governments.”[13]
A few years later, the political conversation shifted substantially, as countervailing concerns about public safety[14] led many cities to backtrack on their defunding or abolition promises.[15] Minneapolis voters in 2021 rejected a ballot initiative that would have abolished the Minneapolis Police Department.[16] By June 2023, Austin city leaders gave their police department its largest budget in city history.[17] Meanwhile, in response to rising homicide rates and a series of apparent hate crimes targeting Asian Americans in Oakland, city leaders restored cuts to its police department and pledged additional funding increases in the future.[18] As one media account put it, only a few years after many policymakers made sweeping promises to defund or reimagine policing, many elected leaders, including leading Black mayors of some of the nation’s largest cities, called for “refunding the police” to “crack down on lawlessness.”[19]
This policy debate at the local level mirrors broader scholarly disagreement over the efficacy of police defunding and abolition.[20] In recent years, a significant and growing body of legal scholarship has called for the shrinking of police responsibilities,[21] the defunding of police budgets,[22] or the complete abolition of local police departments.[23] A small body of scholarly literature has questioned the wisdom of these proposals, arguing that they could unintentionally make policing worse or have grave public safety effects.[24]
Throughout this debate, surprisingly little academic literature has comprehensively explained the fundamental importance of policing as a social institution. This Article argues that, if effectively regulated, policing represents a critically important social institution that can advance the community interest in public safety, justice, equality, and the rule of law. Policing presently serves at least five valuable functions in American society. First, effective policing supports the investigation of harmful conduct and facilitates public accountability for community harm through the justice system.[25] Second, police serve a vital role as frontline emergency responders to situations involving imminent risk of physical injury or death.[26] Third, effective policing deters socially harmful behavior that will exist in virtually any society.[27] Fourth, police agencies are currently the primary agents for enforcing traffic laws in the United States—a role that could theoretically diminish in the future but, at present, remains extensively intertwined with the institution of policing.[28] And fifth, law enforcement is integral to the rule of law, as well as the protection of historically marginalized groups.[29]
Policing can only serve these important functions if it is effectively regulated and accountable to the community it serves. Too often, the failure of policymakers to properly regulate police behavior has led to unaccountable policing agencies that regularly violate the constitutional rights of their constituents, particularly the rights of historically marginalized populations.[30] However, that represents an ongoing regulatory challenge rather than an indictment of the fundamental importance of the institution of policing. Understanding the importance of policing as a social institution has more than mere academic significance. As some scholars push for a fundamental reimagination of public safety, it is vital for these proposals to understand the value conferred by the institution of policing. Only by understanding the importance of policing can both abolitionists and reformers develop solutions that balance public safety and the protection of constitutional rights.
This Article proceeds in three parts. Part I provides a background on the characteristics of modern policing in the United States. This part provides a brief demographic breakdown of American police departments and describes the scope of responsibilities that police officers currently fill across the country. Part II considers the important roles that police departments serve. Then, Part III walks through some of the implications of these arguments for the ongoing debates about defunding, abolition, and the reimagination of public safety.
Some of the first American police departments, as we understand them today, originated in Boston, Massachusetts, and New York, New York.[31] As Gary Potter has argued, once established, these early police departments have “been intimately tied not to the problem of crime, but to exigencies and demands of the American political economy.”[32] Early American police departments handled a wide range of social responsibilities, often far removed from public safety. “Along with arresting offenders, the police … returned lost children by the thousands, shot stray dogs, enforced sanitation laws, inspected boilers, took annual censuses, and performed myriad other small tasks.”[33] Police became both “city servants” and “crime-control officers.”[34]
The institution of American policing has also changed substantially over the centuries. As Professor Franklin E. Zimring explained, for much of early American history, police departments were “often close to … hermetically sealed organization[s] in the dictionary meaning” in that they were “almost impervious to outside influences.”[35] But this has changed as departments professionalized in the mid-to-late twentieth century.[36] This professionalization process has been assisted by a number of major regulatory changes that occurred around this time.
First, in the mid-twentieth century, the U.S. Supreme Court handed down several pivotal criminal procedure rulings that created incentives for police departments to comply with the Constitution.[37] In 1961, the Supreme Court held in Mapp v. Ohio that evidence obtained by police in violation of the Constitution should generally be inadmissible in state criminal courts.[38] This ruling meant that failures by police to follow the Fourth and Fifth Amendments could result in trial court judges denying the admission of evidence procured from these constitutional violations.[39] Theoretically, this creates incentives for police to comply with the Constitution when conducting searches, seizures, or custodial interrogations.[40] During this same time, the Supreme Court also handed down transformational regulations of police interrogation procedures in Miranda v. Arizona,[41] as well as numerous other criminal procedure cases that sought to more heavily regulate police conduct.[42] At least some studies suggest that these judicial attempts to regulate police conduct likely contributed to at least some level of reform across local police departments.[43]
Second, in the mid-twentieth century, the Supreme Court also resurrected the previously dormant federal statute that empowered litigants to bring lawsuits against police officers and their employers for violations of the Constitution.[44] In Monroe v. Pape, the Court held that an individual could recover under 42 U.S.C. § 1983 for violations of constitutional rights committed by Chicago police acting in their capacity as police officers, even if their conduct was not formally permitted by local law or policy.[45] In the years that followed, the Court further expanded opportunities for private litigants to bring suit against not just police officers that violate their constitutional rights, but also municipalities, in the event the municipality caused the constitutional violation through their deliberate indifference.[46] These rulings created new financial liabilities for departments that failed to adequately regulate officer behavior. A body of empirical evidence has raised questions about the size of the deterrent effect of this kind of private litigation, in part because of municipal indemnification policies,[47] budgeting practices,[48] the qualified immunity doctrine,[49] municipal insurance coverage,[50] and the outsourcing of policy development to private third parties.[51] Nonetheless, there is evidence to suggest that, while far from perfect, section 1983 contributed to some meaningful reform and professionalization among American police.[52]
Third, by the late twentieth century, Congress enacted new, more expansive regulations of local police departments. In 1994, Congress passed the Violent Crime Control and Law Enforcement Act, which included a provision giving the U.S. Attorney General the authority to seek equitable relief against police departments engaged in a pattern or practice of unlawful misconduct.[53] Congress passed this measure as a response to the beating of Rodney King,[54] and congressional conclusions that existing mechanisms like section 1983 failed to give private litigants adequate opportunities to seek equitable relief against police departments after Los Angeles v. Lyons.[55] In practice, this has resulted in the Department of Justice conducting numerous formal investigations across the country resulting in dozens of settlement agreements to overhaul policing practices in cities like Los Angeles, Washington, D.C., Seattle, New Orleans, Cincinnati, Detroit, Minneapolis, and Pittsburgh, among other cities.[56] While resource constraints[57] and politics[58] limit the deterrent effect of this measure, it has no doubt had a considerable impact in promoting police reform in agencies across the country.[59]
Admittedly, this only addresses some of the significant regulatory changes that have occurred in the last century in American policing. For much of American history, police were not permitted to be part of labor unions.[60] But starting around the mid-twentieth century, police departments across the country began to unionize in large numbers,[61] and today the majority of American police are part of unions that often negotiate with municipalities on matters like wages, benefits, and other terms or conditions of employment.[62] Undoubtedly, American policing underwent considerable transformation and professionalization throughout the twentieth century.
While more professionalized than in the past, the modern institution of policing remains highly decentralized across thousands of largely local police agencies. Based on the most recent census of American law enforcement agencies conducted by the Bureau of Justice Statistics, there are approximately 17,541 state and local police agencies that employ around 787,565 sworn law enforcement officers across the country.[63] The majority of these officers work in the nation’s 11,824 municipal police departments, mostly in small and mid-sized agencies that employ under 500 officers.[64] While the number of sworn officers has increased slightly over the last decade,[65] this increase has failed to keep up with population growth. Over the last decade, the number of sworn police officers per 100,000 residents has dropped from 251 to 241.[66] Many of these are full-time officers, although a significant number of smaller departments employ large numbers of part-time officers.[67]
Much like their eighteenth and nineteenth century predecessors, modern police departments take on a wide range of responsibilities. An analysis by the New York Times from 2020 attempted to understand how police in New Orleans, Montgomery County, Maryland, and Sacramento allocate their time.[68] It found that these officers spent only around 4% of their time in aggregate responding to violent crimes, as compared to around 29%-31% responding to other crimes, including property crimes.[69] These officers spent anywhere from 7%-18% of their time proactively patrolling their communities, and anywhere from 13%-19% of their aggregate time enforcing traffic code.[70] Thus, it would be fair to say that police today do far more than merely respond to public safety emergencies and crimes of violence. Police also enforce traffic code, respond to some mental health emergencies, enforce property laws, respond to juvenile delinquency, and much more.
In part because police take on such varied roles in modern society, most large police departments serving communities have specialized units or groups of officers tasked with carrying out specialized tasks.[71] Most police departments serving communities with at least 100,000 residents have specialized units for responding to or investigating sexual assaults, mental health crises or interventions, child abuse or endangerment, domestic violence, gangs, terrorism, juvenile crimes, human trafficking, and bias or hate crimes, among other types of specialized public safety circumstances.[72] At the same time, even though police do not exclusively respond to serious crimes, it is important to recognize that a substantial number of sworn law enforcement officers in the United States are dedicated primarily to the investigation and clearing of serious crimes. In total, somewhere between 11%-15% of all full-time sworn police officers at the state and local level work as detectives, depending on the size of the agency.[73]
Much as the scope of policing responsibilities has changed over the decades, so too has the demographic composition of police departments. The racial composition of American policing has also gradually changed over time. In recent years, the percentage of white police officers has steadily declined, falling from 78.5% in 1997 to only 68.6% in 2020.[74] The number of Black officers has held steady around 12% for decades, while the percentage of Hispanic officers has steadily increased from around 8% in 1997 to over 14% in 2020.[75] This means that as of 2020, around one in three officers in the United States is Black, Hispanic, or identifies as part of another non-white racial group.[76] The percentage of women officers has slowly increased in recent years, going from around 10% in 1997 to nearly 14% in 2020.[77]
Admittedly, this only provides a very brief history of the evolution of policing in the United States. Entire articles could be, and have been, written on the topic.[78] Since this Article is focused primarily on the importance of policing in modern America, a limited background is necessary—although it just scratches the surface of the long and winding history of policing in the United States.
This Part identifies five critical functions served by police. First, police play a vital role in investigating, solving, and clearing hundreds of thousands of crimes each year, including a substantial number of violent crimes like homicides, rapes, robberies, and aggravated assaults. In doing so, police provide prosecutors with the evidence necessary for criminal charges. Without someone taking on this important investigative function, the system could not secure justice for crime victims. Second, police act as first responders to thousands of dangerous public safety emergencies. In a nation with more guns than people[79] and constitutional limits on firearm regulations,[80] these types of public safety emergencies are more common in the United States than in some other developed countries. Without armed police to respond to these kinds of public safety circumstances, no comparable arm of the government could adequately protect vulnerable members of the public. Third, a growing body of empirical evidence has demonstrated a link between certain police tactics and the reduction of crime. While policing is, by no means, the only variable that influences crime rates, the empirical evidence strongly suggests that some policing tactics may disrupt situational incentives of would-be offenders and reduce (rather than merely displace) crime.[81] Fourth, police are currently integral to the enforcement of traffic codes in the United States. Without enforcement of these traffic laws, the empirical evidence suggests that the United States may experience even higher rates of automobile accidents, injuries, and deaths.[82] And finally, this Part concludes by arguing that these various and important functions of American police make them a necessary component of any democratic society dedicated to the rule of law.
Before discussing these various functions of policing, it is important to acknowledge the limits of these claims. This Part does not claim that policing is the only institution that could provide the benefits discussed below. For example, just as there is evidence that certain police tactics can reduce crime, so too there is evidence that other social interventions may similarly help reduce crime.[83] Further, while police are currently responsible for the bulk of traffic enforcement in the United States, we could imagine other non-police entities carrying out some of these responsibilities in a manner that generates some of the same public safety benefits.[84] But as discussed in more detail in the subparts that follow, many of the benefits currently derived from policing may be difficult to replicate without some law enforcement agency. This underscores the fundamental importance of policing to modern American society—and the significant hurdles facing police abolitionists.
To begin with, police officers play a critical role in investigating crimes, identifying suspects, and facilitating criminal prosecutions. Around 75% of all officers in large and mid-sized police departments have some sort of investigative capabilities.[85] Admittedly, some recent studies have persuasively demonstrated that police take on numerous tasks, including some largely unrelated to their role as first responders and investigators of criminal behavior.[86]
Nevertheless, it is simultaneously true that police departments across the country “spend a significant portion of their budgets on investigative activities, whether those activities occur within a specialized detective’s unit or amongst officers carrying out investigative activities in their regular patrol duties.”[87] In doing so, police departments clear hundreds of thousands of criminal offenses each year. In 2021, there were 769,182 violent crime incidents and 904,447 violent offenses reported in the United States by 12,939 law enforcement agencies that submitted National Incident-Based Reporting System (NIBRS) data, covering 70% of the total population.[88] These numbers included around 104,573 rape incidents, 133,516 robbery incidents, 15,004 homicide incidents, and 516,089 aggravated assault incidents.[89] During this same year, these same reporting agencies completed around 251,616 arrests for aggravated assault, 33,945 arrests for robbery, 17,763 arrests for rape, and 8,989 for murder.[90]
While clearance rates by police may have declined for some crime categories over recent decades,[91] the best data suggests that police continue to clear most murders and non-negligent homicides, around one-third of all reported rapes and robberies, and about one-half of aggravated assaults.[92] This means that, in the aggregate, police contribute to the identification of hundreds of thousands of perpetrators of violent crimes every year through clearing around 500,000 violent crimes and over one million property crimes.[93] To the extent that society maintains a vital interest in identifying perpetrators of serious criminal offenses, incapacitating those that present a high risk of danger to society,[94] rehabilitating individuals who have committed criminal acts,[95] advancing society’s interest in retribution,[96] and deterring future similar wrongdoing,[97] police can help advance these objectives.
Further, the comparatively high rates of crime in the United States, particularly violent crimes like homicide, make this investigative function critical. As of 2015, the U.S. homicide rate was around seven times higher than other high-income countries,[98] with firearm homicide rates considerably higher at around twenty-five times larger than peer countries across the globe as of 2010.[99] Other crime rates are similarly higher in the United States as compared to other peer countries. For example, one study found rates of assaults were up to thirteen times higher in the Unites States than some other European countries.[100] And rates of robberies in the United States were between 2.5 and 9.9 times higher than European peer countries.[101]
Thus, more so than other highly developed countries, the United States arguably has a more pressing demand for the professional investigation of criminal conduct. And as currently constructed, American law enforcement officers are the primary party responsible for the investigation and clearing of these offenses prior to criminal prosecution.
Next, police play an important role as emergency responders to thousands of situations each year that present immediate risks of serious bodily injury or death. Again, the emergency responder function of law enforcement is particularly acute in the United States because of our comparatively high rate of crime,[102] particularly violent crime,[103] and firearm ownership relative to other countries.[104]
It is admittedly difficult to assess the exact number of emergency responses carried out by law enforcement every year. An assessment by the Vera Institute found that Americans make at least around 240 million calls to 911 for emergency assistance every year.[105] Admittedly, many of these calls do not require responses from armed police. Cynthia Lum, Christopher S. Koper, and Xiaoyun Wu conducted one of the most comprehensive studies to date on 911 police service calls across nine mostly large American cities.[106] They found that a significant percentage of 911 calls in their dataset involved requests for assistance with disorder and disturbances of the peace (16.2%); reports of suspicious persons, vehicles, noises, or other similar circumstances (12.8%); property crimes including burglaries and larcenies (10.2%); alarms (6.9%); and domestic disputes including domestic violence (5.8%).[107] Around 6.4% of all 911 calls involved reports of violence, including homicides, rapes, sex crimes, robberies, and assaults.[108] Additionally, around 1.3% of calls in their dataset involved requests for assistance with mental health issues.[109]
These may suggest that many calls to 911 do not require the need for an armed response. However, extrapolating these numbers across the over 240 million 911 calls made by Americans each year,[110] this would amount to over fifteen million calls for emergency assistance with violent crimes and nearly fourteen million calls to report domestic disputes, including domestic violence.[111] Put simply, even though many calls for emergency assistance may not involve immediate risks of physical injury or death, police are still the first responders to millions of reports of violence or ongoing threats of violence.
None of this is to say that police are necessary as first responders to all calls for service. As discussed in more depth in Part IV.B., several cities have experimented having social workers or non-police officers respond to some mental health calls.[112] However, even cities that have successfully deployed 311 call systems to respond to non-emergency situations have maintained an ongoing need for police responses to emergency situations.[113] For example, in Baltimore, the introduction of a 311 non-emergency call system was associated with a 34.2% reduction in citizen calls to 911, including a substantial reduction in low-priority calls.[114] This nonemergency system, though, did not eliminate the need for emergency responses.[115] In fact, Baltimore experienced a concurrent increase in total high priority calls to its 911 system after the introduction of its 311 system.[116]
Next, the overall body of empirical evidence suggests that police can deter some types of crime, including violent crime.[117] Much of the existing evidence on the deterrent effect of police on crime rests theoretically on the effectiveness of deterrence and the disruption of situational incentives for crime. Traditional deterrence theory says that many would-be criminal offenders are rational. They weigh the benefits of committing a crime against “the certainty, severity, and celerity (or immediacy) of punishment.”[118] Police generally cannot affect the severity of punishment ultimately handed down by the justice system, as that may necessarily involve decisions by numerous other criminal justice actors—for example, whether a prosecutor will file charges, whether a jury will convict them, and the sentencing decision of a trial court judge. But policing tactics may influence the certainty or immediacy of punishment, thereby deterring those considering criminal behavior. The existing empirical evidence suggests that numerous policing tactics—hot spot policing, focused deterrence, problem-oriented policing, and other strategies—likely have some impact on crime rates.[119] This is not to say that these tactics are fully justified or without significant attendant cost. In fact, many focused or aggressive policing tactics come with the risk of significant attendant costs (particularly if not carefully regulated) that often disparately affect racial minorities and other historically marginalized communities that must be weighed against the benefits they provide before they are deployed.[120] Nevertheless, as discussed below, police departments have frequently deployed these tactics to successfully reduce crime that also disproportionately harms many of these same communities.
First, a substantial body of empirical evidence suggests that hot spot policing can contribute to statistically significant reductions in crime with minimal displacement. Numerous prior studies have found that a significant amount of crime is concentrated in a relatively small geographical area.[121] Hot spot policing describes when police agencies target enforcement resources to these geographical areas known for previously high rates of criminal activity.[122] Numerous academics and police departments have tested the hot spot policing theory. For example, in 1995, the Minneapolis Police Department identified 110 hot spots based on addresses with unusually high rates of police service calls.[123] The department then randomly assigned fifty-five of these hot spots to the treatment group that received additional policing resources, with the remaining fifty-five hot spots receiving no additional resources.[124] In analyzing the results from this experiment, Lawrence Sherman and David Weisburd found that the treatment group had between 6% and 13% fewer service calls after receiving additional policing resources, as compared to the control group.[125] As another example, in 2007, the Boston Police Department implemented the so-called Safe Street Teams Program.[126] As part of this program, the department used computerized mapping to identify thirteen violent crime hot spots in the city, and then engaged in increased enforcement initiatives in these locations.[127] Anthony A. Braga, David M. Hureau, and Andrew V. Papachristos found a statistically significant reduction in violent crimes associated with this reallocation of resources.[128] And in Camden, New Jersey, Jerry H. Ratcliffe and Clarisa Breen found that a 2005 initiative to place highly visible uniformed patrols in geographical hot spots for twenty-eight days resulted in substantially larger reductions in all crime as compared to control areas.[129]
These examples are representative of the results from a 2019 meta-analysis of hot spot policing by Anthony A. Braga, Brandon Turchan, Andrew Papachristos, and David M. Hureau that found general agreement that the tactic could reduce crime.[130] That analysis considered seventy-eight separate tests of hot spot policing in relatively small geographic locations from locations across the country, including large American cities like Boston, Buffalo, Camden, Jacksonville, Jersey City, Kansas City, Minneapolis, Newark, New York, Philadelphia, and St. Louis.[131] The meta-analysis also included studies from smaller and mid-sized American cities like Colorado Springs, Flint, Glendale, Lowell, and New Haven, as well as a number of foreign cities like Bogotá, Columbia; Buenos Aires, Argentina; Rajasthan, India; and Stockholm, Sweden.[132] Overall, they found that hot spot policing tactics were associated with a small, but statistically significant reduction in crime rates in the targeted geographical area.[133] This effect was slightly smaller in randomized controlled trials, but remained significant.[134] They also found minimal evidence that hot spot policing merely displaced crime to different geographical locations. Instead, the body of evidence across the seventy-eight tests of hot spot policing was most consistent with “a diffusion of crime control benefits rather than a crime displacement effect.”[135]
They further found that the benefits of hot spot policing extended to reductions in violent crime, property crime, drug crime, and disorder crime rates—with around 80% of all tests of hot spot tests resulting in a subsequent reduction in a targeted crime category.[136] There was some evidence of “mild publication selection bias” in the results, but nothing that substantially altered the overall conclusion that hot spot policing is generally associated with a reduction in crime without substantial displacement.[137] These findings are roughly consistent with prior meta-analysis conducted by a subset of these researchers in 2014 analyzing nineteen then-existing studies[138] and in 2001 assessing nine then-existing studies.[139] These results are also consistent with a 2005 more focused analysis of five randomized controlled trials on hot spot policing.[140]
Second, the weight of the evidence suggests that focused deterrence strategies by police can likely reduce crime rates. Focused deterrence involves attempts by law enforcement to increase the probability of apprehension of would-be criminal offenders and communicate these changes to the targeted population of would-be offenders.[141] It operates under the assumption that many criminal offenders are at least somewhat rational.[142] In deciding whether to commit a crime, individuals weigh the benefits of criminal activity against the probability of apprehension and the swiftness of criminal penalties.[143] This kind of deterrence relies in large part on informing the targets of such enforcement operations of the possible consequences of their actions.[144] David M. Kennedy has identified several key features of focused deterrence policing strategies, including: (1) the identification of a particular crime problem (e.g., youth homicide), (2) identifying “key offenders or groups of offenders and the context of their criminal behavior,” (3) “[d]eveloping a special enforcement strategy” directed at this target population, (4) engaging in “parallel efforts to direct social services and the moral voices of the communities negatively affected by the targeted criminal behavior to those key offenders,” and (5) notifying this group of would-be offenders of the increased police enforcement they will face and the possible consequences of continued criminal behavior.[145]
In a 2018 meta-analysis of twenty-four existing studies, Anthony Braga, David Weisburd, and Brandon Turchan found considerable evidence that these programs can reduce crime.[146] This analysis included studies conducted in a wide range of American cities, including Boston, Chicago, Cincinnati, Indianapolis, Los Angeles, Nashville, Newark, New Orleans, Rochester, Seattle, and Stockton.[147] Nearly 80% of the studies found significant reductions in crime associated with focused deterrence interventions.[148] While the effect size varied by study, the aggregate effect size was “large compared with those of [other] assessments of interventions in crime and justice work more generally.”[149] And similar to the meta-analysis of prior studies on hot spot policing, focused deterrence appears to be an effective strategy for reducing crime, even if we assume the existence of some publication bias in the studies that ultimately make it to print.[150] Among the various types of focused deterrence programs employed by police across the country, Braga et al. found that those targeting serious violent crime produced the greatest crime reductions, while targeted interventions on drug markets produced more modest effects.[151]
Third, problem-oriented policing (POP) tactics likely contribute to reductions in crime. POP originates from the observation by Herman Goldstein in 1979 that policing focused too often on “means over ends”—that is, policing too focused on simply responding to crime rather than partnering with the community to identify the root causes of disorderly or antisocial behavior.[152] Thus, POP strategies have included a wide range of interventions that involve police identifying the root causes of some types of criminal behavior, and teaming up with community members to invest in various initiatives designed to reduce the benefits of crime or the incentives to engage in criminal behavior. This may include everything from initiatives focused on housing for the unhoused, outreach and extracurricular activities for at-risk or unsupervised youth, methods to better track stolen property, assisting community members with the concealment of property to reduce the incentive to break into homes or cars, and more.[153]
Across thirty-nine published studies between 2006 and 2018, Joshua C. Hinkle, David Weisburd, Cody W. Telep, and Kevin Petersen found that problem oriented policing interventions were associated with an average reduction in crime of around 33.8%, considerably larger than many other policing interventions.[154] This included studies from a wide range of American cities, including San Angelo, Texas; Knoxville, Tennessee; Lexington, Kentucky; and Houston, Texas.[155] Nearly all of these studies found the POP intervention associated with a reduction in crime or disorder.[156] Additionally, the studies generally found no evidence of displacement of crime caused by these interventions.[157]
Eight of these prior studies also investigated the effect of these policing tactics on expenditures. All these studies found that POP approaches to policing reduced crime while also reducing policing expenditures and officer hours worked.[158] Even when accounting for publication bias, the meta-analysis still found a statistically significant connection between POP and crime—albeit with POP interventions resulting in an estimated 14.1% aggregate reduction in crime after applying a technique designed to control for publication bias.[159] These results are consistent with multiple prior studies evaluating the effectiveness of POP strategies on crime.[160]
Finally, other policing behaviors including the policing of disorder,[161] pedestrian stops,[162] officer staffing levels,[163] surveillance cameras,[164] neighborhood watches,[165] and improved street lighting,[166] among other strategies, may all be associated with reductions in criminal behavior. Additionally, prior studies have also found that some regulations of police designed to ensure the protection of constitutional rights may inadvertently disrupt policing tactics in a manner that increases crime rates.[167] To be clear, the evidence linking policing tactics to reductions in crime do not demonstrate that policing is the most efficient or morally justifiable route to reduce crime in many circumstances. No doubt, investments in education,[168] access to work opportunities,[169] after-school activities,[170] and other factors likely have some impact on crime. Many of these investments may deter crime without the added risk of police violence,[171] unnecessary and racially imbalanced criminalization,[172] the physical and mental health consequences of over-policing,[173] and mass incarceration[174] presented by criminal justice interventions. This Article does not argue that policing is the optimal way to fight crime. In fact, tactical improvements in the policing strategies may increase trust in local departments, reduce the harmful footprint of police interventions, and operate alongside other social investments as part of a holistic public safety plan.
These realities, though, do not detract from the empirical evidence on the deterrent effect of many policing tactics. Additionally, the existing literature persuasively suggests that the policing tactics that may most effectively reduce crime are those where officers work together with community members to address the root problems contributing to crime, while concurrently establishing an incentive structure that both deter and disrupt situational incentives of would-be offenders. Moreover, as discussed more in Part III, these realities highlight the importance of carefully regulating policing so as to obtain its benefits while minimizing some of its attendant costs.
Perhaps most controversially, police presently serve as the primary agents for enforcing traffic laws across the country. Traffic stops are “the most common interaction between police and civilians.”[175] Police officers across the country are the primary enforcers of traffic safety laws. Annually, police officers in the United States complete tens of millions of traffic stops.[176] These traffic stops result in hundreds of thousands of vehicle and traffic arrests.[177] Police officers enforce all kinds of traffic laws, including speed limits, vehicle registration requirements, red light violations, drunk driving prohibitions, and numerous other moving violations.[178] Part of the justification for police enforcement of traffic laws is the reality that traffic accidents are one of the leading causes of death in the United States and globally.[179] The National Highway Traffic Safety Administration estimates that there were 42,795 motor vehicle traffic fatalities in the United States in 2022.[180]
As discussed in more detail in Part III, researchers have made powerful arguments about the harms involved in police enforcing traffic laws.[181] Numerous studies have found evidence that police officers may engage in racial profiling in the enforcement of traffic code.[182] In many cases, civil rights advocates have argued that police departments have disproportionately allocated officers to communities of color, resulting in these communities experiencing greater enforcement burdens.[183] Emboldened by permissive U.S. Supreme Court precedent,[184] police may frequently use traffic code violations as pretexts to investigate other crimes in situations when they otherwise lack probable cause or reasonable suspicion of any wrongdoing.[185] These tactics, too, may have racially disparate effects.[186] Those documenting police killings of civilians, like the Washington Post,[187] Mapping Police Violence,[188] the Guardian,[189] and Fatal Encounters[190] have found evidence that many of these incidents start with routine traffic stops.[191]
Empirical evidence that police face surprisingly low levels of risk of physical injury or death in the enforcement of traffic laws[192] have bolstered some scholarly arguments that jurisdictions could plausibly narrow the scope of policing by allocating some or all traffic enforcement authority to unarmed, non-police personnel or technological replacements.[193] Scholars have argued that such a shift could still ensure adequate enforcement of traffic code while minimizing the attendant costs of police carrying out this responsibility.[194] And others have argued an increased use of automated enforcement to reduce the attendant risks of police officers using traffic stops as pretexts for the investigation of other criminal offenses that may lead to racial profiling and avoidable violence.[195]
Putting aside those critiques for now, though, the available empirical evidence from across the globe strongly suggests that present efforts by police to enforce traffic laws can reduce traffic accidents, injuries, and fatalities. As Lyndel Bates, David Soole, and Barry Watson explained in an international literature review on traffic enforcement research, countries across the globe generally rely on deterrence theory to reduce harmful driving behaviors.[196] Much like in the context of general policing strategies to deter crime, this theory assumes that the individuals are less likely to engage in reckless or dangerous driving behavior if they believe the “certainty, severity, and swiftness of punishment” is sufficiently high.[197] While jurisdictions across the world take varied approaches to traffic enforcement, virtually all vest this authority in either general police agencies, or police agencies specifically tasked with enforcing traffic laws.[198]
Prior research has consistently shown that, despite its potential risk for attendant harms, police traffic enforcement can reduce harmful driving behavior, leading to fewer injuries and possibly fewer deaths.[199] For example, Michael D. Makowsky and Thomas Stratmann used twenty-one months of data from Massachusetts to estimate the effect of traffic enforcement on motor vehicle accidents and injuries.[200] They found that when cities experienced financial distress, they sought additional revenue through increased traffic stops.[201] These same cities that experienced financial distress and increased traffic stops also experienced a decrease in both traffic accidents and injuries from traffic accidents.[202] As another example, Gregory DeAngelo and Benjamin Hansen used the mass layoff of state highway patrol officers in Oregon to estimate the effect of police traffic enforcement on accidents, injuries, and deaths.[203] A 2003 budget cut in Oregon resulted in the Oregon State Patrol (OSP) laying off 117 of its 354 highway patrol officers.[204] Relative to nearby control jurisdictions like Washington and Idaho, Oregon experienced a substantial decrease in traffic enforcement following the mass layoff of OSP personnel.[205] This decrease in enforcement was further associated with a statistically significant increase in nonfatal traffic injuries and fatalities.[206] Additionally, a meta-analysis of thirty-nine studies found considerable evidence that police efforts to deter drunk driving contributed to a statistically significant reduction in injuries, fatalities, and property damage.[207] Data collected by Richard Tay found that police enforcement of speed limits in the Australian State of Queensland was associated with a statistically significant reduction in traffic accidents.[208]
The overall body of empirical evidence strongly suggests that police enforcement of traffic laws is associated with a decreased probability of traffic accidents and associated harm. Further, while automated enforcement may have some deterrent impact on traffic accidents, some evidence suggests that in-person police enforcement may have even greater impact.[209]
Finally, given the current nature of the responsibilities undertaken by police in the United States, the institution of policing is fundamental to the rule of law in our country. As Ronald A. Cass has explained, scholars have developed multiple different definitions of the rule of law. On one end of the spectrum, some positivist thinkers have defined the rule of law as basically synonymous with “law-boundedness irrespective of the ends served by the law.”[210] Conversely, on the other end of the spectrum, some scholars define the rule of law as effectively “synonymous with justice.”[211] But regardless of where different scholars fall along this spectrum, virtually all scholarship on the rule of law has assumed that it requires the establishment of reasonably transparent laws or rules, and the predictable enforcement of these rules.[212] As former United States Supreme Court Justice Sandra Day O’Connor explained, while there is wide disagreement about the definition of the rule of law, generally most conceptions of the rule of law “requires that legal rules be publicly known, consistently enforced, and even-handedly applied.”[213] This is consistent with the claims of many scholars that any basic conception of the rule of law requires some type of government enforcement of laws and rules, and mechanisms to ensure compliance with the law.[214]
As Tom Tyler has explained, an effective rule of law requires the government to be able to gain both immediate and long-term or general compliance with rules and legal authority.[215] As he explained:
For example, when the police are called to intervene in a domestic violence dispute by telling someone to stop beating his or her spouse it is important that they be able to stop aggressive behaviors that are occurring. It is further desirable if they can intervene in a way that discourages similar behavior in the future . . . . [Additionally,] [t]he law tells people not to speed, not run red lights, and not to murder their neighbors. To be effective, such laws need to generally be widely obeyed by members of the public in their everyday lives.[216]
The need to gain compliance with legal rules is compounded by the reality that individuals often resist compliance with the law, even when confronted by law enforcement officers. As found across multiple studies, noncompliance in the face of police enforcement efforts is common. One study from Richmond, Virginia, found that officers responding to public safety calls faced noncompliance rates of 22%.[217] These included around 19% noncompliance when police asked an individual to leave another person alone, 33% noncompliance when police asked a person to stop engaging in a disorderly act, and 18% noncompliance when they asked someone to stop illegal behavior.[218] A similar attempt to replicate this finding in St. Petersburg, Florida, and Indianapolis, Indiana, found that officers faced noncompliance rates of around 20%.[219] These included fairly high noncompliance rates for requests to leave another person alone (14%), requests to stop disorderly behavior (25%), or cease some other type of disorder (21%).[220] Given the challenges that even armed law enforcement faces in obtaining compliance with the law, it is difficult to imagine a predictable and ordered society without any such state institution.
As Jeremy Waldron has explained, predictable and regular enforcement of the law can ensure that “ordinary people” are able to “uphold their rights, settle their disputes, and [receive protection] against abuses of public and private power.”[221] Police, for all their faults, are the primary American institution that investigates and enforces prohibitions on unlawful conduct. A robust rule of law cannot exist without some institution, like police, tasked with the enforcement of laws.
The evidence presented in this Article has numerous implications for the emerging debates about police defunding, abolition, and the reimagination of public safety. Even before the murder of George Floyd by former Minneapolis police officer Derek Chauvin,[222] some civil rights activists and scholars began arguing that policing was fundamentally broken and could not be adequately regulated.[223] Thus, according to this viewpoint, the only way to reduce the harms of policing is to reduce the footprint of policing or abolish policing altogether.[224] The murder of George Floyd seemed to galvanize, at least for some brief time, broader public interest in these policy proposals.[225] At least a few major cities reduced or pledged to reduce funding to their local police departments, although many eventually reversed course.[226]
While polling suggests that public support for the defunding or abolition of police departments appears to be somewhat low,[227] the scholarly interest in the topic has seemingly grown in recent years.[228] This Part considers the implications of this Article’s findings for the growing scholarly debate on defunding, abolition, and the reimagination of public safety. It ultimately argues that defunding or abolition may not alleviate many of the social problems that policing seeks to remedy, nor adequately provide the benefits of policing as an institution. While this does not discredit the valuable contributions made by scholars supporting defunding or abolition of policing, it does suggest that these proposals may face significant implementation challenges. Further, this Part argues that scholars advocating for defunding or abolition may benefit from offering counterproposals that would ensure that some other government institution could adequately replace many of the socially valuable contributions of modern policing.
To better understand the implications of these findings for the ongoing debate about police funding, it may be useful to discuss how we fund policing in the United States. Most spending on policing in the United States happens at the local level (municipal or county) and is funded primarily by local property taxes and sales taxes, as well as occasionally, local income taxes.[229] Local governments are commonly tasked with funding not just police departments, but also schools, fire departments, parks, sanitation operations, some local infrastructure, and some social services.[230] Thus, police departments are often competing with other local government services for a finite pool of resources.[231] On average, most localities nationally spend less than 10% of their locally generated tax revenue on police or sheriff’s departments—although this number varies somewhat by municipality.[232]
Police departments also reflect the vast municipal wealth disparities that exist in the United States. Wealth is not evenly distributed geographically in the United States.[233] Some jurisdictions with high property values and significant concentrations of commercial businesses can tax constituents at comparatively low rates, and still obtain comparatively large amounts of revenue relative to their peer cities.[234] Meanwhile, poorer communities often struggle to obtain adequate revenue.[235] This has resulted in significant disparities between jurisdictions in police spending. In some wealthier jurisdictions, departments employ almost entirely full-time sworn officers paid considerable full-time salaries with generous benefits.[236] By contrast, some poorer jurisdictions can only afford to hire part-time officers paid less than employees at the local Walmart.[237]
As a preliminary matter, these realities suggest that defunding or abolition of police is unlikely to free up sufficient resources at the local level to adequately address many of the root causes of crime and violence. Even if most or all local tax dollars currently spent on local policing were reallocated to other social programs, it would represent a relative drop in the bucket compared to existing expenditures on social programs in the United States.[238] In 2018, federal, state, and local tax receipts totaled around $5.4 trillion.[239] Of these tax receipts, roughly 64% were federal tax receipts, 21% were state tax receipts, and 15% were local tax receipts.[240] The vast majority of all police spending at the state and local level comes from this local tax revenue.[241] Based on this estimate, spending on local policing represents approximately 3.7% of all state and local expenditures.[242] Thus, no matter how it is measured, spending on local policing represents a relatively small fraction of all government expenditures at the federal, state, and local level combined.[243] It is not clear that a reallocation of a comparatively small amount would drastically reduce wealth disparities, poverty, educational disparities, or crime rates. If anything, this may suggest that many police defunding and reallocation demands are insufficiently ambitious. For defunding and reallocation to make a significant dent in the root causes of crime and violence in the United States, this reallocation may need to be more extensive and coordinated at the state or federal level.[244]
Further, because of the unequal distribution of wealth and the method by which we currently fund police, the poorest municipalities in the United States stand to benefit the least comparatively from defunding or abolition. Policing, as imperfect as it may be, may be a cost-effective strategy to provide at least some benefits to communities plagued with high crime rates. This is part of why some, like economists Aaron Chalfin and Justin McCrary, have argued that America may be underinvesting in policing.[245] As they see it, murders are especially costly to society, and each $1.00 invested in policing may yield a social return of around $1.63 in social benefit through reduced violent crime rates, particularly reduced murder rates.[246]
At the same time, the existing empirical literature is mixed on whether changes in police strategies or changes in policing staff levels may be the key to reduced crime.[247] This may suggest that defunding efforts that mildly reduce the number of officers on a police force may not produce significant increases in crime, so long as they do not limit the ability of a police department to deploy potentially empirically supported crime fighting strategies.
Next, supporters of defunding and abolition may be most successful if they couple their demands with affirmative, empirically supported proposals for replacing many of the socially valuable functions that policing currently serves. Some of these functions—like the enforcement of traffic code violations—may be more comparatively straightforward to replace than others. As discussed earlier, some researchers have argued that automated enforcement technologies could effectively replace a significant number of existing traffic officers.[248] Numerous technologies exist today that were unimaginable only a few decades ago, including automated speed cameras, red light cameras, and automated license plate readers.[249] These automated traffic enforcement technologies, while controversial, could theoretically enforce the traffic code in a more neutral manner without the concurrent risks of unnecessary escalation or subsequent violence.[250] Elizabeth Joh has argued that policymakers could conceivably replace much of police traffic enforcement with automated traffic enforcement technologies.[251] Doing so, she argues, would remove officer discretion from the exercise of traffic code enforcement.[252] As currently structured, the U.S. Supreme Court has granted police with extensive discretionary authority in the enforcement of traffic code.
In Whren v. United States, the U.S. Supreme Court held that a police officer may conduct a traffic stop anytime they observe any objective violation of the traffic code, even if their real motivation for the traffic stop is to investigate a hunch or suspicion that does not rise to the level of probable cause or reasonable suspicion.[253] That case originated from the stop of Michael Whren and James L. Brown in Washington, D.C., (both Black men) after officers claimed to observe them stop at a stop sign for over twenty seconds, turning without signaling, and driving at a high rate of speed.[254] The officers used these circumstances to legally justify the traffic stop, even though their actual motivation was to investigate whether the vehicle’s occupants may be engaged in other crimes, like drug trafficking.[255] The officers then claimed that, as they approached the car, they saw two large plastic bags filled with crack cocaine in the hands of Mr. Whren.[256] Police then arrested both Whren and Brown.[257]
In attempting to suppress this evidence, Whren and Brown argued that the traffic stop violated the Fourth Amendment prohibition on unreasonable searches and seizures since the officers’ purported justification for the traffic stop was pretextual; the officers weren’t actually interested in the speeding or failure to signal, but rather in investigating their unsubstantiated hunch that the defendants were engaged in drug trafficking.[258] If permitted to engage in pretextual stops of this variety, police would have enormous power to stop virtually any driver any time they observe some kind of a “technical violation.”[259] This, they argued, could give officers discretionary authority that could be used in a racially imbalanced manner.[260] In a unanimous decision, the U.S. Supreme Court rejected these concerns and held that pretextual traffic stops do not violate the Fourth Amendment.[261] In the wake of Whren, scholars widely worried that because police harbor implicit bias that disproportionately impacts racial minorities,[262] this new broad grant of discretionary authority could result in officers “us[ing] the traffic code to stop a hugely disproportionate number of African-Americans and Hispanics.”[263]
Then, in Atwater v. City of Lago Vista, the U.S. Supreme Court further expanded police power during traffic stops. In that case, the Court held that after a lawful traffic stop, a police officer may arrest the driver for any criminal offense, even an offense that does not lead to imprisonment under state statute.[264] After conducting a traffic stop of Gail Atwater and her two children, an officer in Lago Vista, Texas, allegedly observed the children sitting in the front seat of the automobile without seatbelts.[265] Rather than simply issuing a traffic citation, the officer decided to handcuff Ms. Atwater and place her under arrest.[266] Thereafter, she was booked at the police station and forced to wait in a jail cell for an hour before appearing before a magistrate judge who released her on a $310 bond.[267] Under Texas law, her charges (failure to wear a seatbelt and failure to provide insurance documentation) were criminal misdemeanors punishable by only fines with no possibility of imprisonment.[268]
Ms. Atwater claimed that the officer’s behavior constituted an unlawful seizure in violation of the Fourth Amendment.[269] But the Court narrowly held that officers may conduct such warrantless arrests for any criminal offense, including those that can only result in fines.[270] The combination of Whren and Atwater, along with other historic criminal procedure cases, gives police extensive authority to use traffic stops as tools for investigating unrelated crimes and hunches. As Justin Driver put it, this line of cases gave police a license to engage in fishing expeditions and exploratory searchers that would inevitably “fall disproportionately on racial minorities . . . .”[271]
States and localities, though, could respond by limiting police authority in the context of traffic stops. Several cities and states have already moved to ban or limit the use of pretextual stops.[272] Still, others have attempted to limit other types of police behaviors during traffic encounters, like the use of consent searches.[273] Other states have attempted to outlaw or limit the use of particularly offensive police management tactics like quotas, that may contribute to constitutional violations.[274] In other jurisdictions, local prosecutors have established declination policies, whereby they have publicly announced that they will not pursue criminal cases if evidence emerges of officers engaging in questionable conduct during traffic stops, regardless of the admissibility of the evidence.[275]
More drastically, scholars like Jordan Blair Woods have argued that localities could fully replace armed police with unarmed civilians for many types of traffic enforcement.[276] Doing so could “increase fairness and equality in policing along lines of race and class,”[277] reduce the number of police-civilian interactions that escalate into violence,[278] improve the public perceptions of the police,[279] and give police time to focus on more significant public safety problems.[280] As discussed previously, some empirical evidence compiled by Woods suggests that officers face low risks of physical injury or death during the process of conducting traffic stops.[281]
Despite the thoroughness and persuasiveness of Woods’s data, it is difficult to know whether these low risks are in any way connected to the fact that motorists understand that officers conducting traffic stops are often armed and empowered to make arrests or otherwise enforce the criminal law. Outside of one mid-sized American city, there has been little appetite among local and state elected officials to transfer traffic enforcement to unarmed civilians.[282]
By contrast, some of the other functions of policing may be hard to replicate. It remains unclear whether defunding police and reinvesting that relatively small pool of money (as compared to other existing government expenditures on social programs) could meaningfully reduce crime as efficiently or effectively as the most empirically supported policing techniques. Additionally, it may be hard to replace the emergency responder function that police currently serve. Even if local jurisdictions move to abolish police, no individual municipality can independently outlaw handgun ownership. In places like Washington, D.C., the U.S. Supreme Court has overturned local attempts to regulate handgun ownership on Second Amendment grounds.[283] And in cities like Chicago, local attempts to regulate firearm ownership within the boundaries of the Second Amendment have not prevented the free flow of handguns from nearby jurisdictions, like Indiana, with laxer firearm regulations.[284] Thus, there will almost certainly be occasional emergency situations requiring a response from armed government personnel. This does not mean, though, that communities cannot still reimagine the scope and role of police as emergency responders.
Numerous cities across the country are experimenting with new models for responding to individuals experiencing mental health crises that minimize the role of armed law enforcement. For example, in Chicago, the proposed “Treatment Not Trauma Ordinance” would pair police officers with mental health professionals to provide more holistic responses to mental health emergencies.[285] That model builds both on an earlier pilot program used in Chicago[286] and a Denver program that similarly sent mental health professionals rather than police to over 700 calls in its first six months in operation.[287] The Denver program primarily dealt with non-violent situations, often involving individuals experiencing homelessness, poverty, substance addiction, and mental health issues.[288] Admittedly, these calls represented a small minority (around 3%) of the total calls handled by police in Denver each year.[289] But by replacing even this small percentage of situations previously handled by Denver police, that program “frees up police to handle” more serious public safety emergencies like “a robbery or domestic violence call.”[290]
As another example, Portland similarly has employed a separate “Portland Street Response” team that responds to 911 calls between 8am and 10pm in the city.[291] This program has received praise from city leaders, including the mayor, for effectively handling over one thousand calls a year that might have otherwise gone to the police department.[292] Like in Denver, supporters of the program have praised it for freeing up police to spend somewhat more time focusing on violent crime and more urgent public safety issues, by allowing the Street Response team to respond primarily to the 911 calls involving an apparent mental health crisis or intoxication issue in public where there is no visible weapon.[293] However, like in Denver, it is important to acknowledge that the roughly one thousand calls fielded annually by the Portland Street Response team represent a small fraction of the total calls for public safety assistance received by the city every year.[294] Most public safety calls are still handled by the police department.
Finally, those supporting the full abolition of the police may need to consider the implications for the rule of law. How can a robust rule of law exist in a world without the primary state institution empowered to ensure immediate compliance with legal rules—particularly those related to conduct deemed socially harmful and thus criminal? If the government has no state institution empowered to use force to stop harmful behavior, how can the government respond to public safety emergencies? And without the frontline enforcers of the criminal law, how can the state ensure that the criminal law is anything more than a symbolic gesture?
Another particularly complicated question for abolitionists is how to best protect the vulnerable in a world without police or law enforcement. Just as an example, hate crimes in the United States reached record levels in 2023.[295] In 2022, the Federal Bureau of Investigations reported an estimated 11,634 hate crime incidents involving around 13,337 bias-motivated offenses.[296] The majority of these involved offenses based on the victim’s perceived race, ethnicity, or ancestry, while a substantial minority involved offenses based on religion or sexual orientation.[297] There are legitimate concerns about the handling of these hate crimes by some law enforcement agencies, including claims of underenforcement or underreporting.[298] Nevertheless, hate crime enforcement is just one of many examples of circumstances where the enforcement of criminal law is a critically important tool for the protection of historically marginalized groups from private violence.[299]
This is not to say that the existing state of policing in the United States is fully consistent with a just rule of law. The manner in which policing disparately affects communities of color raises its own serious concerns about the legitimacy and the rule of law.[300] However, responding to this reality by abolishing or substantially defunding law enforcement may ultimately create even greater rule of law-related challenges. Based on the available empirical evidence, defunding may reduce resources for criminal investigations, thereby lowering clearance rates and resulting in fewer offenders being brought to justice for their crimes. Defunding police agencies is unlikely to address the rate of gun ownership or the underlying causes of public safety emergencies that currently require armed intervention by police. This could exacerbate power imbalances, with vulnerable and unarmed individuals hurt the most by a lack of government response to public safety emergencies, crime, and violence.
The world would be simpler if policing were an objective evil that could simply be eradicated. The reality is more complicated. Policing serves numerous important roles in society—including investigative, emergency response, deterrence of crime, and traffic enforcement functions—that may prove difficult to replace with other government institutions. At a minimum, any effort to strip fully these powers from police departments must consider the collateral consequences and offer compelling alternatives to replace these current functions of policing. More generally, the enforcement of many criminal prohibitions by police is fundamental to the rule of law and the protection of historically marginalized communities.
This is not to say that policing has always been consistent with a robust rule of law. In some jurisdictions, poorly regulated and unaccountable police departments have engaged in patterns of unconstitutional behavior.[301] These harms often disproportionately affect historically marginalized communities, including communities of color (especially Black and Latino young men), LGBTQIA+ individuals, and justice-involved populations.[302] Additionally, communities often ask police departments to do too much, suggesting that communities may be wise to narrow the scope of some police responsibilities and better regulate the authority of police when they engage in these remaining responsibilities. Given these realities, effectively controlling police behavior is a complex regulatory challenge, one that demands aggressive local, state, and federal responses. This may include bolstering state oversight of police,[303] reforming federal civil rights laws,[304] re-examining doctrinal interpretations of existing laws regulating police behavior,[305] and rethinking the internal investigation and disciplinary procedures used by many police agencies,[306] just to name a few prior proposals.
These kinds of policy changes will not be easy. Given the decentralization of American policing, many of these policy changes would require action by legislators at the local, state, and federal levels. However, this approach may maximize the social benefits of policing, while minimizing its attendant harms.